At last!

At last!

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End of life issues and how the Wills & Probate Practitioner might help

Did you know that it was Dying Awareness Week last week? I must confess I read about it in the Guardian and the Times (one of the consequences of lecturing around the country is you get to read a variety of newspapers) but had not previously heard of the organisation who planned it – Dying Matters. This initiative coincided with the investigation by the Times about the lack of available burial space in England and the publication of an interesting book by Patricia C Byron entitled ‘Last Orders’ – the essential guide to your letter of wishes.

All in all a great week for firms to engage with their clients and potential clients about the age old problem of making a Will and encouraging a tidy and organised death. What did you do? What could you do?

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Dying Matters

‘Dying Matters’ is a broad based coalition set up by the National Council for Palliative Care (NCPC) to raise public awareness of dying, death and bereavement, to support the implementation of the Government’s End of Life Care Strategy.

The Dying Matters Coalition mission is to promote awareness and support changing knowledge, attitudes and behaviours towards dying, death and bereavement, and through this to make a ‘good death’ the norm. For more information take a look at their web site www.dyingmatters.org.

It commissioned an opinion poll with ComRes the results of which were that 15% of us want to live forever but most want to live into their 80s. The poll also confirmed, what I suspect most Will draftsmen know, that as people age they increasingly believe it is quality of life that is important not longevity.

Few people discuss with their family the type of funeral they would want and 36% have never discussed whether they have a Will with family and friends. The experience of Patricia Byron supports this lack of desire to talk about dying and the practical problems this leaves for those left behind, be it friends or family or professionals who are asked to act as executor.

The saddest death I was asked to deal with involved a lady who had been cared for since birth and had no friends or relatives willing to organise her funeral. Choosing the place of the funeral and the service and attending on my own to watch her be cremated was most poignant especially as I did not know her and I had no idea whether I had chosen things which she would have wanted.

Dying Matters is to be congratulated for encouraging the population to talk about dying and what it means to die well for each of us. I particularly like their comment – “Talking about death doesn’t bring it nearer. It’s about planning for life – because it allows you to make the most of the time you have.” There are some useful resources available on Dying Matters web site and I would encourage you to explore them.

Last Orders

Patricia Byron’s interesting book (ISBN 978-0956508-90-4) was borne out of her experience of supporting two friends and her mother through the end of their lives and not wanting after the first time to have to make the innumerable decisions which are required without some guidance from the deceased. Many Will draftsmen may well have developed similar checklists or given similar advice to the testator when taking Will instructions but if you want some ideas to develop your own tools or even promote the use of the book then it is a worthwhile read.

Care home fees

Many solicitors are asked about the cost of paying for residential care home fees. Perhaps as part of the discussions and advice given using the Law Society Practice Note dated 16 July 2009 called ‘Making Gifts’ practitioners might broaden the discussion to consider end of life matters too in particular some of the practical issues around funeral planning; dealing with property and personal belongings; handling pets and other important personal issues.

Also this past month Partnership (a care fees specialist) announced the result of some research conducted by the Local Government Information Unit into the state of long-term provision. Apparently there are 162,000 people in care homes in England who rely on funding from the state. A further 612,000 receive some state-funded care. With the baby boomer generation reaching retirement age the numbers are expected to rise significantly.

The cost to the public of supporting elderly people in care will rise from £6.36 billion per year to an expected £12.15 billion a year by 2025-6. On average a state funded person lives a further 2.3 years from entering a care home whereas a person paying for themselves on average lives a further 4 years. Since it costs on average £30,000 per annum to live in a care home solicitors are well aware that the fear of many is that their resources will not last and they will have no inheritance to pass on to their children.

Hargreaves Lansdown reckons you would need to save £1,357 per month from the age of 60 to cover the amount necessary to live for eight years in an above average cost care home. A scary sum.

Perhaps this issue prevents and clouds a person’s ability to discuss death and dying with dignity.

A final resting place

The Times investigation into the availability of burial space is worrying. Apparently we may run out of space within a decade. 150,000 of us a year choose to be buried so local councils are putting pressure on the Ministry of Justice to grant nationwide permission for the re-use of abandoned graves as well as considering requisitioning allotments and playgrounds for new graveyard space.

If you or your clients wish to find out more about availability before a decision is made about the choice of disposal of their body on death take a look at www.thetimes.co.uk/burialmap

With this shortage in mind a discussion about whether organ donation, burial or cremation is favoured by the testator must form part of the surrounding discussion to making a Will. Dying tidily necessitates discussion to provide as broad a picture of religious requirements and family preferences as possible. With more fractured families it is important to engage the client in discussion as to who the executors should consult in making any arrangements and who should be ignored, although the PRs are only morally obliged to follow any such wishes.

Practice points

Will draftsmen definitely have a hard task when it comes to encouraging some clients to conclude their Wills and even then only a small proportion of the population make a Will but tapping into the Dying Matters initiative may help to raise the profile and importance of making a Will.

We also need the language and ability to help people to plan positively. It need not be morbid to talk about dying and death. Indeed we should encourage people to see it as part of the dialogue of planning for end of life so that they can enjoy the present.

We have the tools to help both those with support and those who need to have professionals to help them because they do not have friends and family to assist for whatever reason. Advanced directives have their place in this discussion as well as Lasting Powers of Attorney – whether that be Property & Finance or Health & Welfare.

Despite the concern over funding care home fees we should try and widen the discussion to the end of life area and consider building into professional executor appointments some of the ideas from ‘Last Orders’.

Tel: 01962 776442 Email: gill.steel@lawskills.co.uk
Gill Steel is a solicitor with more than 35 years specialist experience in Wills, Probate, Trusts, Taxation of Trusts and Elderly Client issues. She is an active protagonist of Private Client law and a well-informed and rich source of knowledge for practitioners.
As a compelling seminar and conference speaker both in-house and at public events Gill has a strong gift for making topics practical, engaging, authoritative and informative.
Gill is the author of The Trust Practitioner's Handbook (currently on its 4th edition) and its companion book the Trust Practitioner’s Toolkit both published by the Law Society, has written The Street-wise Guide To Getting The Best From Your Lawyer, published by Edward Everett Root, which is her first book for the general public, and she contributed to Equity & Trusts published by Hall & Stott Publishing. Recently LawSkills has self-published “Residence Nil Rate Band – Practical thoughts on its use and application” available from Amazon.